The Internet Radio Fairness Act’s Attack on Free Speech

In case you missed it: yesterday, the Future of Music Coalition held its annual summit, a full day’s worth of varied speakers and varied topics. The primary topic was the Internet Radio Fairness Act (IRFA) — Pandora’s Tim Westergren led off the summit with a “conversation panel” designed to drum up support for the bill. Senator Ron Wyden, sponsor of the Senate’s version of the bill, had the honor of keynoting the event, and his remarks centered around the legislation.

The Trichordist’s own David Lowery participated on a panel in between the two devoted to the bill. He was joined by General Counsel of the American Federation of Musicians Patricia Polach, SoundExchange General Counsel Colin Rushing, Consumer Electronics Association lobbyist Michael Petricone, and AccuRadio founder Kurt Hanson.

Lowery had earlier challenged Westergren on the free speech implications of Section 5 of IRFA. Westergren deflected: “I’m not going to get into a back and forth over legislative language.”

During the panel discussion, Lowery focused again on the chilling effect that Section 5 would pose to artists and artist organizations. The AFM’s Polach echoed his concerns.

When Senator Wyden took the podium, he attempted to address these concerns. With his voice raised, he conceded that “If the consensus in the legal community is that this restricts the First Amendment, it will be a very short-lived provision.” Techdirt’s Mike Masnick jumped to Wyden’s defense:

As we noted in our prior post, IRFA’s chilling effect on free speech is not a bizarre interpretation.

Satellite radio provider Sirius XM is currently suing SoundExchange and the American Association of Independent Music (A2IM) primarily because of blog posts expressing their opinion on direct licenses pursued by Sirius. It is seeking monetary damages, a permanent injunction, the dissolution of SoundExchange, and the invalidation of all copyrights licensed by SoundExchange — copyrights involving over 70,000 performers — because these organizations representing artists engaged in speech that Sirius disagrees with.

These groups have explicitly raised the First Amendment in defense. As A2IM argues in its memorandum supporting its motion to dismiss, filed last June, “a trade association’s mere recitation of facts and its opinion on an issue or standard cannot constitute an antitrust violation.”

Instead, such a recitation is protected free speech. … Sirius pleads nothing more than just such protected expressions of A2IM opinion.

Artists and artist advocates should not need to run things by their lawyer whenever they want to communicate to other artists their thoughts and opinions on deals offered by Sirius, Clear Channel, or any other business that relies on their music.

We don’t have to wonder if there is a free speech concern with Section 5 of IRFA — there is. We don’t have to guess if corporations will sue artist organizations for speaking up — they already are.

Section 5 would only codify and set in stone this suppresion of dissent.

That IRFA’s own authors, self-described defenders of the First Amendment, weren’t aware of the definite chilling effect of the bill until yesterday only reinforces the idea that Congressional tampering with artists’ royalties is not yet ready for prime time.

5 thoughts on “The Internet Radio Fairness Act’s Attack on Free Speech

  1. Having seen both the interview with Westergren and Sen. Wyden’s speech yesterday, I came away with the feeling that Sen. Wyden wants to do the right thing but has been made to breathe a bunch of silicon valley swamp gas.

    How can you say no to a bill that promises to increase “innovation?” Unfortunately, the logic that links IRFA with “innovation” is tenuous at best. Westergren’s basic line was something like “High royalty rates are scaring away competition. There should be 100 Pandoras, but there aren’t.” This statement just does not add up, for several reasons.

    1. It’s true that there aren’t “100 Pandoras.” But there never would be, even if music were royalty free. We all know now that the “the Internet likes there to be one of everything,” or however the saying goes: one search engine (Google), one social network (Facebook), one mega e-commerce site (Amazon), one video sharing site, etc. There won’t be “100 Pandoras.” Audiences just don’t fragment like that online.

    2. Instead of “100 Pandoras,” we have iTunes, Amazon, Spotify, Deezer, MOG, YouTube, etc., etc., in addition to Pandora, all of which run under different royalty schemes from the 114(d) scheme at issue in IRFA.

    3. Even if you look at services that use the 114(d) royalty, Pandora sure as hell does have competition (as I said at the FMC Summit). Consider terrestrial simulcast aggregators like TuneIn. These are unsexy businesses. They aren’t funded by A-list silicon valley VCs, and they aren’t publicly traded, which is perhaps why Tim Westergren doesn’t acknowledge them. But they are cheap to run and thus most likely profitable. They operate largely on autopilot and don’t require dozens of developers, as Pandora does. And people sure do use these services. In fact, a July 2011 survey ( shows that, at least for in-vehicle listening, terrestrial simulcast has 2/3 the listenership of Pandora.

    4. And let’s not forget the many, many music startups that have fallen by the wayside over the years, for various reasons other than royalty rates, such as bad user experience.

    1. we think a good start is making more people aware of the trichordist and our efforts. if we want to ban together, more artists need to understand the real issues. don’t be fooled, pandora is the tip of the iceberg, here’s some required reading:

  2. Thank you for everything you do. I try to post and retweet as much as I can. I’ve also started a new link page called “Allies” to my website and added The Trichordist to help bring people here & educate them.

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